Bill Clinton acquitted by US Senate in impeachment proceedings

I learned about the burden of proof and presumption of innocence as a young boy, long before law school, when my father, who was a lawyer, taught me that American justice is dependent on these principles. As I grew up and became a lawyer myself, I experienced firsthand the significance of these bedrock principles and learned that it applies to all Americans accused of crimes, including the President. These principles of the burden of proof and the presumption of innocence help guide me now as we exercise our constitutional duty to judge the specific accusations of criminal behavior lodged against the President of the United States. The burden of proof on the House of Representatives that the President has committed serious crimes and should be removed from office is a heavy one, because overturning an election in a democracy is a drastic and dire action. The House has not carried that burden of proof as to the specific accusations against the President.

The arguments of the House Managers in support of the Articles suffer from fundamental weaknesses. They repeatedly rely on inferences while ignoring direct testimony to the contrary; they omit key materials which contradict their charges; and they contain serious misstatements of key facts. In a matter of such consequence as the removal of an elected President from office, such a case should not lead to conviction.

Let me cite some key examples from Article II, the allegation of obstruction of justice. First, the House Managers in their report, brief, and arguments to the Senate repeatedly rely on inferences to prove key points and ignore direct testimony to the contrary. In opening arguments, House Manager Hutchinson made the following claims:

"As evidenced by the testimony of Monica Lewinsky, [the President] encouraged her to lie."

"...(T)he testimony of Monica Lewinsky ... leads to the conclusion that it was the President who initiated the retrieval of the gifts and the concealment of the evidence."

"...The President needed the signature of Monica Lewinsky on the false affidavit, and that was assured by the efforts to secure her a job." Mr. Hutchinson's arguments rely on inferences. Relying on inferences is not unique to proving a case. What is unique is that in this case, the House Managers use inferences primarily from bits and pieces of testimony of people who explicitly deny those inferences in their direct testimony.

The House Managers' inference that the President encouraged Monica Lewinsky to lie was contradicted by Monica Lewinsky's direct testimony that the President never "encouraged" her to lie.

The House Managers' inference that "it was President Clinton who initiated the retrieval of the gifts and the concealment of the evidence on December 28, 1997," was contradicted by Monica Lewinsky's direct testimony that she initiated the concealment of gifts. Not only is it an uncontested fact based on direct testimony that it was Monica Lewinsky who on December 22, 1997, following the receipt of a subpoena for gifts and having decided on her own to withhold gifts which would "give away any kind of special relationship," brought to her attorney only those gifts that were "innocuous" and typical of the kind of gifts an intern might receive. It is also an uncontested fact based on direct testimony that it was Monica Lewinsky who, on December 28, 1997, expressed her interest in wanting to hide the gifts when she said to the President that maybe she should transfer the gifts to Betty Currie. Ms. Lewinsky testified that the President either didn't respond to her comment or said he'd think about it.

But what makes the Managers' inference even more speculative is the fact that at the December 28th visit, the President gave Ms. Lewinsky even more gifts, including a bear carving from Vancouver, a small blanket and a stuffed animal. Why would the President give Ms. Lewinsky gifts at the same time he is asking her to conceal others he had already given her? I was struck by the House's answer. "The only logical inference," according to the House Managers, "is that the gifts--including the bear symbolizing strength--were a tacit reminder to Ms. Lewinsky that they would deny the relationship--even in the face of a federal subpoena."

That inference, called "the only logical inference," is not only the rankest form of speculation, it is also contrary to the direct evidence.

The undisputed grand jury testimony was that the bear carving was brought back by the President from Vancouver, a trip which occurred weeks before Monica Lewinsky's name appeared on any witness list. We're not even offered speculation as to how the President could foresee that Monica Lewinsky would be on a witness list, and pick up a symbol of strength while in Vancouver so that he could give it to her as a reminder to deny their relationship in the face of some future, unforseen federal subpoena. But even more to the point, when Ms. Lewinsky was asked the direct question at the grand jury whether she interpreted the gift of the Vancouver bear carving as a signal to her to "be strong in your decision to continue to conceal the relationship," her direct, one-word answer was "no."

The Managers' reliance on inferences from testimony of persons whose direct testimony contradicts the inferences was a recurring pattern during this trial. The Managers alleged that the signing of the affidavit and the obtaining of the job for Ms. Lewinsky were linked, based on inference from bits and pieces of testimony of Monica Lewinsky and Vernon Jordan. But Vernon Jordan and Monica Lewinsky explicitly denied any such linkage. Ms. Lewinsky said, "There was no agreement with the President, Jordan, or anyone else that [I] had to sign the Jones affidavit before getting a job in New York." Mr. Jordan told the grand jury in answer to the question whether the job search and affidavit signing were linked, "unequivocally, indubitably, no."

Impeachment and removal should be based on sturdier foundations than the heap of inferences that have been placed before us, when those inferences are pieced together from bits of testimony of witnesses whose direct, explicit testimony contradicts the inferences. The House Managers would have us overlook the forest of direct testimony while getting lost in the trees of their multiple inferences.

The House Managers' case also omitted directly relevant, contradictory material and misstated key facts. For instance, the House Managers argued in their brief that relative to the job search assistance for Ms. Lewinsky, "nothing happened in November of 1997." But, in fact, our Ambassador to the United Nations, at the request of the Deputy Chief of Staff of the White House, offered Ms. Lewinsky a U.N. job on November 3rd.

The House Managers' report explicitly represented that "(t)he first activity calculated to help Ms. Lewinsky actually get a job took place on December 11," and that "(s)omething happened that changed the priority assigned to the job search." What happened, the Managers argued, was a court order "on the morning of December 11" by Judge Wright requiring President Clinton to provide information about prior relationships involving state and federal employees. The Senate was told by the House Managers that "(s)uddenly, Mr. Jordan and President Clinton were now very interested in helping Ms. Lewinsky find a good job in New York" and that Vernon Jordan got active on the afternoon of December 11 when he and Ms. Lewinsky met.

Manager Hutchinson said in his argument to the Senate,

"The witness list came in. The judge's order came in. That triggered the President to action. And the President triggered Vernon Jordan into action. That chain reaction here is what moved the job search along."

But that key argument disintegrated before our eyes when it turned out that Judge Wright's December 11 order came late in the day, well after the meeting between Vernon Jordan and Monica Lewinsky, and in addition, the meeting had been scheduled many days before.

With respect to the perjury article, the House Managers failed to meet their burden as well. The President admitted to the grand jury that he did have "inappropriate intimate contact" with Monica Lewinsky when he was alone with her, and the House Managers failed to identify specific statements that would meet the requirements of a perjury charge. 4

The lack of substantive evidence supporting the charges explains why a panel of five highly regarded former Democratic and Republican federal prosecutors, who appeared before the House Judiciary Committee, testified that this case against the President would not have been pursued by a responsible federal prosecutor. Thomas Sullivan, who served for four years as U.S. Attorney for the Northern District of Illinois, and whom Chairman Hyde described as having "extraordinarily high" qualifications had this to say:

"...(I)n conversations with many current and former Federal prosecutors in whose judgment I have great faith, virtually all concur that if the President were not involved if an ordinary citizen were the subject of the inquiry no serious consideration would be given to a criminal prosecution arising from alleged misconduct in discovery in the Jones civil case, having to do with an alleged coverup of a private sexual affair with another woman or the follow-on testimony before the grand jury ... I believe the President should be treated in the criminal justice system in the same way as any other United States citizen. If that were the case here, it is my view that the alleged obstruction of justice and perjury would not be prosecuted by a responsible United States Attorney."

Finally, I have had a deep concern about the impeachment process which formed the basis of this trial.......